Posted on by Mark Movsesian

Repairs at the Holy Sepulcher

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Jerusalem, March 22

Here is a little good news about Mideast Christians, for a change. Last week, the three principal Christian communities that maintain the Church of the Holy Sepulcher in Jerusalem announced that they have reached agreement on repairs to the Edicule, a nineteenth-century structure that encompasses the Tomb of Christ. At a joint news conference, the leaders of the Greek Orthodox, Armenian Apostolic, and Roman Catholic communities announced that work on the structure, built a little more than 200 years ago, will start right after Orthodox Easter in May and last several months. The three communities will share the costs–about three million euros–and each appoint architects to help with the project. Pilgrims will continue to have access to the site while renovations are underway.

Readers who don’t know the history might fail to appreciate what an accomplishment this is. The three communities share the church, along with some smaller Christian communions, according to the terms of the Status Quo, a compilation of customs that dates to Ottoman times. The Status Quo governs the relationship among the communities in minute detail: which can use which altars at which times, how many lamps each community is allowed, and so on. Relations are often fractious. Because, under the Status Quo, maintaining or paying for repairs of a structure asserts ownership, each community has an incentive to prevent others from undertaking renovation projects. Needed repairs are often delayed until the situation becomes truly dire—as is the case with the Edicule, which has been held together by scaffolding since the 1940s.As Israeli scholar Raymond Cohen explains in a masterful history, Saving the Holy Sepulchre, it took the communities decades to agree on a plan to fix the church’s dome, and  they reached agreement only when the dome was about to fall down. That project, the last major renovation of the church, was completed about 20 years ago.

Well, relations have improved. The new situation reflects in part what Pope Francis has called the “ecumenism of blood.” The persecution of Mideast Christians does not respect confessional boundaries. When ISIS is slaughtering your people, disputes about lamps do not seem so vital. The Facebook page of the Armenian Patriarchate of Jerusalem, which represents the Armenian Apostolic Church, has pictures of the three happy Christian leaders at the news conference (above). Peace, it’s wonderful. Let’s hope the good feelings last for the upcoming Holy Fire ceremony at Easter, which often occasions conflict. Fistfights are not unknown.

Posted on by Mark Movsesian

Calling It Genocide

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Photo: NPR

In a press statement yesterday, US Secretary of State John Kerry did what many human rights activists have been asking him to do for months: he called ISIS’s treatment of Christians and other religious minorities “genocide.” Kerry’s statement came as a surprise. For months, the State Department had been hinting that, although it believed that ISIS’s treatment of Yazidis qualified as genocide, it was not prepared to use that word to refer to the group’s treatment of Christians. In fact, as late as Wednesday, in response to a looming congressional reporting deadline, the State Department indicated it would need more time to decide what to do.

State had been reluctant to use the word “genocide” with respect to Christians for a few reasons—all of them bad. First, ISIS’s treatment of Christians was said to differ from its treatment of other religious minorities. In theory, ISIS, also known by its Arabic acronym, “Daesh,” allows Christians to remain unmolested as long as they pay the jizya  and comply with the other terms of the dhimma, the notional agreement that offers protection to “People of the Book.” By contrast, Yazidis, whom ISIS considers idolaters, receive no such protection. They must convert or die.

This distinction is specious. By contemporary human rights standards, the dhimma is quite oppressive. It’s silly to present it as a workable modus vivendi for religious minorities in the twenty-first century. Besides, as Nina Shea and others have documented, in practice ISIS routinely ignores the dhimma and engages in a systematic campaign of murder, rape, enslavement, and expulsion against Christians. Its activities, reminiscent of the last great wave of anti-Christian persecution in the region 100 years ago, clearly qualify as genocide as that term has come to be understood in contemporary law. ISIS manifestly aims “to destroy” Christians, “in whole or in part,” as a “religious group.”

Second, much of the evidence for genocide was said to remain hidden in ISIS-occupied territory, inaccessible to human rights observers. Without direct access, how could one be sure what was happening? It’s not necessary to be physically present, however, to know that ISIS is engaged in a campaign to drive out Christians (or murder them) and erase their culture. ISIS declares its intentions openly and makes videos to document its activities.

Finally, there was the longstanding worry that speaking out on behalf of Christians would appear sectarian and embarrass American goals in the region – and might actually work to Christians’ detriment. There is something to this. Mideast Christians often suffer from their association with Christians in the West. And Western intervention often occasions disaster for them (see: the Iraq War). But the situation is truly dire for Mideast Christians at the moment. Any marginal detriment would go unnoticed in the context of the overwhelming catastrophe they face.

Some may be inclined to dismiss the Secretary’s statement, but that would be wrong. True, in terms of legal consequences, the statement seems weak. “I am neither judge, nor prosecutor, nor jury with respect to the allegations of genocide, crimes against humanity, and ethnic cleansing by specific persons,” Kerry said. “Ultimately, the full facts must be brought to light by an independent investigation and through formal legal determination made by a competent court or tribunal.” Meanwhile, the United States will “collect, document, preserve, and analyze the evidence of atrocities,” and “do all we can to see that the perpetrators are held accountable.” In essence, he seems to be saying, the US will monitor the situation and refer for prosecution, either in the US or at an international tribunal, specific persons it determines to have engaged in genocide, and these people may eventually be convicted–assuming, of course, we can get our hands on them at all.

All this seems a bit remote. Candidly, ISIS’s leaders and operatives do not worry overmuch about legal process, in the US or elsewhere. Threatening to prosecute them is unlikely to deter them from their campaign to restore the caliphate. But law is not the most important criterion for judging Kerry’s statement. The statement has an important moral valence. “I hope,” Kerry said, “that my statement today will assure the victims of Daesh’s atrocities that the United States recognizes and confirms the despicable nature of the crimes that have been committed against them.” Moreover, by highlighting the gravity of the situation, the statement may make it easier for human rights advocates to lobby the US and international organizations to offer needed humanitarian and financial assistance to Christians and other religious minorities. It may make it easier to convince the US and other Western countries to offer asylum to Christian and other religious refugees.

Yesterday’s statement was a welcome development. Thanks must go, not only to Secretary Kerry, but to Representatives Jeff Fortenberry (R-NE) and Anna Eshoo (D-CA), who led a bipartisan effort in Congress to get the State to designate the treatment of Mideast Christians as genocide, as well as human rights activists like Shea, who worked tirelessly to keep this issue on the national agenda. For a long time, it has seemed that the suffering of Mideast Christians was not a priority for the US. Perhaps that has begun to change.

Posted on by JCPW

Dispatches From Kabul: Walls of Separation and the Call to Prayer

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Former CLR Fellow Jessica Wright ’14 is currently working as an attorney in Kabul, Afghanistan. This post is part of a series of reflections on her experiences there.

In New York it was the sirens that nettled, piercing through triple-paned glass seventeen stories above the avenue at all hours of the day and night. In Kabul it’s the call to prayer that distracts, albeit less frequently, and which I wake to most mornings. There’s the initial crackle of the loudspeaker, a clearing of the throat, and then a momentary struggle to find the right pitch. The opening words of the azan ring out clearly and confidently – Allahu Akbar – but sometimes, part of the way through, the voice wavers and there is an awkward adjustment of the register, an interruption that could be obviated with the initial use of a pitch pipe or the playing of a middle C, I’ve thought. Then again, I’ve never seen a pitch pipe in Afghanistan, and I suppose it would be difficult to put a piano in a minaret.

Since September, we’ve had a string of mediocre muezzins, criers who never fail to rouse us from our sleep just before dawn, but whose recitations of the takbir and shahada – the Muslim Statement of Faith – leave much to be desired. It’s a bit ironic that they’ve been so lacking, considering that muezzins are traditionally chosen for their superior vocal skills. The first, Bilal ibn Rabah, was supposedly plucked from obscurity by the Prophet Mohammad for his beautiful voice. The idea was that the more melodious and clear the expression, the more powerful the azan, and therefore the more compelling would be the spiritual ideology of Islam sung in those eight verses. Allahu Akbar (four times) / I acknowledge that there is no deity but God (twice) / I acknowledge that Mohammad is the Messenger of Allah (twice) / Hasten to Prayer (twice) / Hasten to success (twice) / Prayer is better than sleep (twice) / Allah is greatest (twice) / There is no deity but God (once). This standard of qualification seems not to be taken seriously in my Kabul neighborhood. Perhaps the benchmark here is pünktlichkeit, in which case I’ve no doubt that our muezzins would be considered rousing successes. It’s disappointing, though, that their rendition of the azan does not resonate across the land as an otherworldly call to the divine.

To make matters worse, our current prayer leader has taken to conversing with himself over the loudspeaker after the initial recitation. The intonation is thoughtful, even philosophical, as if he is contemplating deep and important questions out loud. One morning, as I was lying in bed listening to his slow, punctuated words, I started thinking about America and Constitutional law and Jefferson’s letter to the Danbury Baptists. I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state. That wall was adopted by the Supreme Court, becoming authoritative in Reynolds and “high and impregnable” in Everson. In context, Jefferson’s pithy metaphor concerned his opposition to an established national church rather than a belief in strict separationism, but it is a comforting metaphor at dawn while being sermonized over a loudspeaker. In such moments, prayer is not better than sleep.

***

They call the enormous concrete blast wall surrounding the U.S. Embassy near Massoud Circle the King Kong wall because it is a barrier so overwhelming that only a fictional movie monster could surmount it. Last week as we were driving by, a colleague said, “That thing should be considered a wonder of the world.” The grey concrete casts a long shadow on passers-by and dwarfs all of the buildings in its vicinity. I’ve wondered recently if the song of the muezzin reaches past it, through the security maze of the Green Zone, and into the container homes of my compatriots at the U.S. Embassy. It must, I think, since after Read more

Posted on by Robert J. Delahunty

Justice Scalia and Conservatism

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This posting was originally a short speech given to students at the University of St. Thomas Law School on February 29.

We will all miss the unique and iconic personality of the late Justice Antonin Scalia. Few if any Supreme Court Justices have been gifted with such charm, humor, charisma and pizzazz. He was a man of great faith; a brilliant and memorable writer; a witty raconteur; a powerful and bracing intellect. He argued law, as he lived life, with passion and gusto. In his impact on the American public, he was in a class of his own: among the Justices of the past, perhaps only Oliver Wendell Holmes, Jr., Robert Jackson, and Thurgood Marshall can be compared to him. One might even say, with all due deference to Senator Cruz, that Justice Scalia was the living epitome of New York values.

But we are here to discuss his influence on the law, especially on constitutional law. And for all his great and varied gifts, his long tenure on the supreme bench, and the vigor and clarity of his opinions, his influence on constitutional law, at least judged from our current perspective, was very limited.

The two doctrines one associates most closely with Scalia’s jurisprudence are, of course, originalism and textualism. Others on this panel will no doubt discuss them, and I will say something about them a bit later. But what I want to consider briefly here is another important but neglected strand in his jurisprudence: his use of custom or tradition in constitutional adjudication. This aspect of his jurisprudence is, in my view, the most distinctively conservative element of it. There is no inherent connection between textualism or originalism and conservatism, but there is such a connection between custom and conservatism.

Nineteenth century legal conservatives such as James Coolidge Carter went so far as to identify law with custom. Or more accurately, they identified the common law with custom. One could say, in that spirit, that the common law identifies, articulates, stabilizes, and occasionally revises and improves, custom. And much of American Read more

Posted on by Mark Movsesian

Evangelicals and Tradition

TP BannerAt the First Things site this morning, I have an essay about young Evangelicals’ use of the phrase “Spiritual but Not Religious” to describe themselves, and what that suggests about tradition in America. Here’s an excerpt:

Paradox also characterizes our American religious tradition—a tradition in which Evangelical Christianity, broadly defined, is such an important element. On many cultural and political issues, tradition appeals to Evangelicals; they are the “traditional values” people. But Evangelicalism sits uneasily with the idea of tradition. Evangelicalism stresses personal faith, unimpeded by custom and “human” inventions. Wariness about tradition seems at the core of Evangelical spirituality, a characteristic that separates it from other forms of Christianity, like Catholicism and Orthodoxy, in which tradition has a much greater role.

The popularity of “Spiritual but Not Religious” among young Evangelicals today is a good example. Many young Evangelicals apparently wish to signal their distance from religious tradition, even their own. Tradition for them is not a benign thing; it is a snare to be avoided. True, one might distinguish religious traditions from other sorts. People might minimize tradition in their Christian life but honor it in politics, for example. But I have to think that wariness about tradition in religion influences how people see tradition in other areas of life, too.

I continue to think tradition may be ready for a revival. But I acknowledge the obstacles it faces. In America, it’s not only secular individualists who are suspicious of tradition, but many Christians as well. Tradition will have to overcome not only the objections of skeptics, but many believers, too.

You can find the full essay here.

Posted on by Marc O. DeGirolami

The Optimist: Reflections on Justice Scalia

Some thoughts of mine on Justice Scalia at Commonweal. A bit from the end that is connected with our Tradition Project:

His optimism is perhaps nowhere more evident than in his Establishment Clause opinions, which express his appreciation for the traditions of the American accommodation of law and religion, and his hopeful expectation that American people would maintain, cherish, and be sustained by that inheritance. That optimism underlies much of his jurisprudence. In constitutional law, he believed that tradition is itself an independently powerfully reason in the law’s interpretation. That emphasis on American tradition led him to the view (often expressed in dissent) that “acknowledgement of the contribution that religion has made to our Nation’s legal and governmental heritage” is permissible under the Establishment Clause.

In my judgment, he was largely correct about this. Even more, however, Scalia was convinced that the American tradition of public religion—public prayer, for example—was a uniting force of civic fellowship. Hearing a public prayer in a tradition different from one’s own, he argued in his Lee v. Weisman dissent, would not lead to public discord, but to greater harmony, mutual understanding, and even civic “affection.” How old-fashioned this view seems amid today’s cacophony of demands for validation based on identity or interest group.

Yet it is in his free-exercise jurisprudence that Scalia’s optimism in the commonplace American character was tested and stretched to the breaking point. His seminal contribution was Employment Division v. Smith, where the Court held that a neutral law of general application did not implicate the Free Exercise Clause even if the law had the effect of burdening religion. Many critics of Smith (I am one) miss that what may first appear as a hard and parsimonious rule for religious freedom is closely coupled in Scalia’s opinion with a deep faith and optimism that people, acting through their legislatures, would do right by their religious brethren, would be magnanimous and charitable toward them whenever they could be:

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.

Scalia was determinedly sanguine in his opinions about American solicitude for religion. Religious liberty and tolerant good will could never be eradicated from the core spirit and innate generosity of the American people. The people might go astray; they might make mistakes. But in the long run and in the main, the best and most secure outcomes for religious freedom will reflect popular negotiations rather than Court-imposed “solutions.”

So sanguine was he that even as late as 2012, Scalia—a deeply faithful and committed Catholic—could obdurately persist in telling John Allen in an interview that “if the bishops want an exception from the law [in this case the contraception mandate in Obamacare], they should try to get it through the democratic process…. Americans are very generous about accommodating religious beliefs.” The Congress that passed the Religious Freedom Restoration Act in 1993 was more pessimistic in its long-term assessment of the character of the American people. Alas, it was probably more accurate as well.

In fact, one may wonder whether Justice Scalia’s faith in the American people in the long run will be rewarded. Certainly he must have had his doubts. Especially toward the end, he must have known and regretted that his “wins” were so “damn few.” So they were, and so, perhaps, they will be. But to Scalia’s great credit, those doubts and regrets never appeared in his written opinions. And over the truly long run, optimism is not so bad a bet.

Posted on by Marc O. DeGirolami

Gratitude for Legal Traditions

I completed my law and tradition cycle of posts today at Liberty Law with this one,TP Banner Gratitude for Legal Traditions. Here is the rest of the cycle in one place:

And here’s a little bit from the beginning of the most recent post, which responds in part to Mark’s post on the subject:

The prospects for law and tradition are difficult to discern. This is in no small measure because the most frequent predictions about tradition’s future have little time for any traditions other than those of science and technology. And these generally are not presented as traditions but instead as repudiations of tradition—as simply rational responses to changing circumstances in the service of progress and present need. The prophets of the traditionless society never go quite so far as to strike out the traditions of science from their predictions.

Recently, my friends John McGinnis and Mark Movsesian engaged in an interesting exchange on the subject of tradition and contemporary politics and society. John argued that technology creates a culture and a politics relentlessly oriented to the future and deracinated from the past. Mark responded that traditions and traditional institutions survive, even today, because they speak to basic human nature and “most of us need the stability the past provides, the guidance of received wisdom.”

Each man makes his points. It is certainly true that substantive traditions—particularly substantive religious traditions—have been severely shaken by various contemporary tremors. They have been attacked directly and they have been weakened from within. And yet they have not been destroyed. Perhaps they cannot be destroyed so long as human beings are born to human beings. So long as parental care is necessary for the raising of children. So long as people seek to find meaning in an infinitely mysterious universe. So long as they depend upon rules, categories, and institutions which they cannot create ab ovo and for that occasion alone whenever changing circumstances demand it. So long as the autonomous acts of autonomous actors cannot achieve all of the ends that render life worth living. Just so long will people seek and find traditions, cling to them, and be grateful to them. Though they may become dissatisfied with them, human beings need traditions to live.

Posted on by Marc O. DeGirolami

Comparing Traditionalism and Originalism II

Here’s the second of my two posts on traditionalism and originalism in constitutional interpretation. This post discusses the TP BannerNoel Canning decision, and one of its main points concerns the institutional pluralism (legal, political, social, and cultural) of the traditionalist method. A bit:

First, a quick recapitulation of traditionalism in constitutional interpretation. Traditionalist interpretation is concerned with perpetuating and maintaining longstanding legal practices—not only those of the Supreme Court but also of other legal and political institutions (Congress and the Executive, for example) as well as social and cultural institutions (as in the case of legislative prayer). Especially in the many cases of vague constitutional text, traditionalist interpretation takes these practices not as evidence of meaning but as constituents of meaning.

Traditionalist interpretation consequently values the practices of many different sorts of institutions. It is institutionally pluralist in this way, and certainly not focused exclusively on the Supreme Court. In fact, a traditionalist Supreme Court opinion will be deferential to the constitutional views of the coordinate branches where those views have endured for very long periods of time. It will be interested in maintaining and re-cementing those views. There is therefore a democratic component of traditionalist interpretation, though it is the democratic sensibility of the authority of long-standing practice as the accumulated wisdom of the people over time, not that of present majority inclination.

Like originalist interpretation, traditionalism is historically rather than normatively oriented, but it does not focus single-mindedly on the moment of ratification. Institutional practices before, during, and after ratification are significant. Continuity is the crucial feature. The longer those practices have endured, the less likely the Court will be, in the ordinary case, to upset them—indeed, the less likely that the practices may be to be brought before the Court at all.

Noel Canning concerned the meaning of the Recess Appointments Clause in Article II, Section 2, Clause 3, and in specific whether the phrase “during the recess” authorized the President to make appointments within congressional sessions or only between the formal sessions of Congress. The originalist arguments for the latter interpretation were powerful, but in a 5-4 majority opinion authored by Justice Breyer, the Court concluded that the President may make recess appointments while Congress is in session.

The influence of traditional institutional practice on the Court’s decision was massive. Relying on Chief Justice Marshall’s statement in McCulloch v. Maryland that the “longstanding practice of government” must inform the Court’s role to “say what the law is,” the Court emphasized that “long standing and established practice is a consideration of great weight in a proper interpretation of constitutional provisions.” In this, the Court’s first foray into interpreting Recess Appointments Clause in more than 200 years, “we must hesitate to upset the compromises and working arrangements that the elected branches of government themselves have reached”….

But the particular nature of that “broader interpretation” in Noel Canning is of great interest. What makes a practice long-standing? How long and continuous is long and continuous enough? Which political virtues are supported by the traditionalist method? And how does the longstanding practice or traditionalist approach differ from living constitutionalism?

The Court did not answer any of these questions directly. But it did say that “three quarters of a century of settled practice” in which Presidents had overwhelmingly favored the broader construction and the Senate had largely acquiesced in that construction “is long enough to entitle a practice” to “great” interpretive weight. In truth, three quarters of a century does not seem a particularly long period as the traditionalist measures time, particularly when compared, for example, with the duration of the practice of legislative prayer in Town of Greece v. Galloway. Yet what seems to matter is not only temporal duration but also the preponderance or uniformity of the interpretive preference within that span.

It was also critical to the majority’s approach that though the founding-era view was not directly probative of the Court’s broader interpretation of the clause, the Court found it to be consistent with that interpretation. That finding permitted the incorporation of founding-era understandings to support the longstanding practice on which the majority relied (again, this was a point vigorously and acutely disputed by Justice Scalia). Finally, institutional dynamics and historical patterns also figure prominently in the majority opinion. It was the enduring practices of the coordinate political and more directly democratically accountable branches, not those of the Court, that demanded acknowledgment and deference.

As for the differences between traditionalism and living constitutionalism, one of the most significant is that for the former, long-standing and continuous practice fixes meaning. And it fixes it with a durable presumption, refusing to deviate from it unless there are overwhelmingly good reasons for doing so. Living constitutionalism is committed to no such thing. It prizes the evolution of meaning. A practice’s endurance or traditionalism is never a reason to perpetuate it. To the contrary: it is if anything a reason to change it.

I should add that the DC Circuit’s opinion draws a much sharper divide between founding-era practice and subsequent practice. In some ways, this makes the Supreme Court’s opinion even more interesting from a traditionalist perspective: Justice Breyer’s opinion did not acknowledge this division. It worked the difference into a continuity. I suppose one could be cynical about this and say that traditionalist methods are manipulable. But Breyer could not have incorporated the founding period into the tradition if there had been a more marked divergence from later practice (thanks to Adam White for help in thinking through some of this).

Posted on by Christina Vlahos · 1 Comment

To Each His Own: The Jurisdiction of Religious Courts in Israel

In January, I traveled to Israel to participate in the Dean’s Travel Study course, an upper-class offering here at St. John’s that allows students to travel and observe foreign legal systems. The trip, led by Professor Keith Sharfman, allowed me to explore the nexus between religion and government. It was particularly valuable for me as a fellow in the Center for Law and Religion and the Center for International and Comparative Law. My fellow students and I met with professionals who not only shared our love of the law, but whose perspective is also shaped by their experiences practicing law in one of the most contentious regions on the planet.

In Jerusalem we had the opportunity to tour the Israeli Supreme Court, attend oral arguments for three different cases, and even meet an Israeli Supreme Court Justice, Justice Elyakim Rubinstein. We heard about the makeup of the current Israeli Supreme Court, the process by which the Justices are selected, and the application of both Jewish Law and State Law in the resolution of the cases that come before the Court. The only Arab justice on the court is also a Christian, and he regularly cites the Old Testament, the Talmud, the New Testament, and the Koran to support his legal positions.

Though Israeli judges can cite religious texts in civil decisions, there are certain contexts in which religious law and civil law are divided into separate and distinct spheres – in particular, in the context of family law.  This system is a remnant from the Ottoman Empire – minority religious communities were allowed to maintain their own courts to adjudicate family law disputes within their own communities.  This was called the “Millet” system. The geographic area that comprises the modern Israeli state was part of the Ottoman Empire until the early 20th century.  After the fall of the Ottoman Empire, the League of Nations established the British Mandate, whereby the United Kingdom was granted authority to rule Palestine. During this time, the Ottoman system of separate religious courts remained in place. The Israeli State also left the Millet system intact.

There are several religious courts in Israel: Jewish rabbinical courts, Christian courts (with separate courts for different denominations of Christianity), Muslim courts, and Druze courts.  The religious courts deal primarily with disputes relating to marriage and divorce.  Each religious court only adjudicates disputes between parties who are of that faith.  For instance, a Jewish rabbinical court only adjudicates disputes between Jews.

In the United States, we consider the free exercise and establishment clauses of the First Amendment to be pillars of our society.  Thus, residents of the United States can rest assured that the government will not pass and enforce laws with the purpose of discriminating against people on the basis of their religious beliefs and practices.  The laws of this country will not be made on the basis of religious principles if without a secular purpose. Though a line is drawn between religion and government, invariably, religious beliefs do inform much of our public debate.  They especially inform much of our public debate in the context of family law.  There are few contexts in which this is more apparent than in the recent cases involving same-sex marriage, the outcome of which is that the country has expanded the definition of secular marriages performed by state officials, in which marriage licenses are issued, to include homosexual as well as heterosexual couples.

The State of Israel does not issue marriage licenses at all.  It does not perform secular, or civil unions – they do not exist.  Instead, marriage is seen as a religious institution in Israel, the parameters of which the state has no role in defining.  Religious communities determine marriage’s meaning for themselves. The rabbinical courts define marriage for Jews, the Christian courts for Christians, and so forth.

In Israel, two individuals of different faiths may not legally marry.  They are compelled to travel elsewhere (Cyprus is a common destination) to have their marriage performed. Upon their return to Israel, that marriage may be registered with, and will be recognized by, the state.

Israel has thus managed to avoid some of the conflicts that are unavoidable in American society.  By delegating the responsibility of defining and performing marriages to religious communities, and of adjudicating marital disputes to their respective courts, Israel has found a way to accommodate conflicting religious traditions, while still recognizing marriages that have been performed outside of Israel, but which do not qualify for religious validation.

The cost of this accommodation is fairly high for Israelis who seek to be joined in matrimony but whose union would not be authorized by any of the designated religious communities in Israel. The Israeli State shifts the responsibility of authorizing marriages to religious communities – but it bears the responsibility for the dearth of options for non-religious or mixed-religion couples.

Posted on by Marc O. DeGirolami

Welcome to the Blogosphere “Religion Going Public”!

Professor Helge Årsheim (University of Oslo) writes to me with news of a very good new blog, Religion Going Public. The blog’s focus is primarily on religion, culture, and politics in Norway, Scandinavia, and Europe, with a very interesting group of contributors.

Welcome to the blogosphere, and check it out!